Internet Porn: Protected in the Workplace?

According to one website, 30% of men and 13% of women admit to using their work computers to look at Internet porn. This poses obvious problems for employers, such as lost productivity and potential lawsuits (workplace pornography can be considered sexual harassment). However, CNET reports that one software company, Utah-based Paraben, is helping employers put a stop to such risky behavior by developing a forensic program designed to detect pornography. The software analyzes images on workplace networks and hard drives and divides them into three grades, depending on the suspiciousness of the image. According to CEO Amber Schroeder, the software can effectively monitor image downloads in real time, allowing an employer to nip porn in the bud before it leads to offensive workplace environments and pricey litigation. Price tag: $17,000 for 500 computers.

This software sounds great, but there remains a dicey legal question as to whether employers can even use it. The issue in these cases is whether the employee has a legitimate expectation of privacy in the workplace, thus allowing him to invoke his Fourth Amendment right to privacy. Some courts, such as the Ninth Circuit in United States v. Ziegler, have held that employer monitoring is sufficient to defeat such an expectation. However, this case and others like it seem to conflict with the Supreme Court’s decision in O’Conner v. Ortega, the leading case on workplace privacy. I think we all can agree people shouldn’t be looking at online pornography at work, but if the holding in Ortega is correct, it may be protected if the employee expects that his company won’t look at the material on his computer. Will Ziegler eventually get overturned? I don’t know the answer, but while privacy should be protected, it has to yield to people looking at porn at work, especially when they are looking at it on their employer’s computer.